STATE OF WEST VIRGINIA v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
Filing
35
MEMORANDUM OPINION re: 13 Defendants Motion to Dismiss. Signed by Judge Amit P. Mehta on 10/30/2015. (lcapm1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
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State of West Virginia,
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Plaintiff,
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v.
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United States Department of Health and
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Human Services,
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Defendant.
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_________________________________________ )
Civil No. 1:14-cv-01287 (APM)
MEMORANDUM OPINION
I.
INTRODUCTION
As part of the Patient Protection and Affordable Care Act (“ACA” or “the Act”), all
individual health insurance plans are required to comply with eight federally mandated market
requirements, unless a plan qualifies for a “grandfathering” exception. Responsibility for the
enforcement of these market requirements is shared by the federal government and the States. The
ACA does not compel the States to enforce the market requirements, but provides them with the
option of doing so if they desire. If a State declines to enforce the Act or does so inadequately, the
ACA provides that “the Secretary [of Health and Human Services] shall enforce” the Act’s
provisions “in such State.”
Initially, all health insurance plans that went into effect or were renewed after January 1,
2014, were required to be compliant with the ACA’s eight market requirements. However, after
some individuals and small businesses received cancellation notices from their insurance
companies, the federal government—through Defendant Department of Health and Human
Services (“HHS”)—instituted a change in policy (“the Administrative Fix”1 or “the Fix”). On
November 14, 2013, HHS announced that, subject to certain conditions, it would refrain from
enforcing the eight market requirements through October 1, 2014, thereby allowing consumers to
retain coverage under non-compliant policies until that date. HHS further announced that it would
encourage States to follow the federal government’s lead and refrain from enforcing the eight
market requirements. States, however, remained free to enforce the market requirements if they
so wished. On March 5, 2014, HHS extended the Administrative Fix until October 1, 2016.
Plaintiff State of West Virginia brought this action to challenge the Administrative Fix,
claiming that the Fix violates the Affordable Care Act and the Administrative Procedure Act;
constitutes an unlawful delegation of federal executive and legislative power to the States; and
contravenes state sovereignty under the Tenth Amendment. The merits of the State’s contentions,
however, must take a back seat to the threshold issue advanced by HHS in its Motion to Dismiss:
that West Virginia lacks standing to challenge the Administrative Fix.
West Virginia asserts that it has standing because the Administrative Fix forces it to make
an untenable choice: either regulate under the ACA or decline to regulate, in which case noncompliant policies will be sold within West Virginia’s borders because of HHS’ policy decision
not to enforce the ACA’s market requirements. These circumstances, West Virginia argues, have
caused it to suffer two cognizable injuries. First, West Virginia contends that HHS’ policy decision
not to enforce the ACA has shifted enforcement responsibility to the State and made it the
“exclusive and unfettered” enforcer of the ACA’s eight market requirements within its borders.
This purported shifting of enforcement responsibility, West Virginia claims, has caused it to suffer
1
For convenience in referring to the record, the court has decided to use the term used by Plaintiff—“the
Administrative Fix”—to describe the policy change. In its pleadings, Defendant refers to the same policy as “the
Transitional Policy.”
2
an “anti-commandeering” injury under the Tenth Amendment. Second, West Virginia contends
that the shift in enforcement responsibility has made the federal government less politically
accountable for the non-enforcement of the ACA at the expense of the States. West Virginia
alleges that this heightened “political accountability” to its own citizens constitutes a cognizable
injury.
The court rejects these arguments and concludes that West Virginia lacks standing to
challenge the Administrative Fix. The State’s asserted injuries are not the kind of concrete and
particularized injury-in-fact that is actual or imminent—and not conjectural or hypothetical—that
is required to establish standing under the standards set by Lujan v. Defenders of Wildlife, 504 U.S.
555 (1992). Therefore, because this court lacks subject matter jurisdiction over this matter, the
court grants Defendant’s Motion to Dismiss.
II.
BACKGROUND
A.
Factual Background
Congress enacted the Patient Protection and Affordable Care Act (“ACA” or “the Act”) on
March 23, 2010. Def.’s Mem. in Supp. of Mot. to Dismiss, ECF No. 13-1, at 4 [hereinafter Def.’s
Mem.]. Among the reforms initiated by the ACA was a requirement that all individual health
insurance plans that went into effect or were renewed after January 1, 2014, were to meet eight
federally mandated market requirements, unless they fell under a grandfathering exception.
Compl., ECF No. 1, ¶ 20.
The ACA established a regime of “cooperative federalism” to enforce these requirements.
Under the Act, States are the first line of enforcement and can elect to use their resources to enforce
the ACA, consistent with their own state laws. Id. ¶¶ 25-26; 42 U.S.C. § 300gg-22(a)(1) (“[E]ach
State may require that health insurance issuers . . . meet the requirements of this part with respect
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to such issuers.”). If a State elects not to enforce the market requirements, the ACA then tasks the
Secretary of the Department of Health and Human Services (“HHS”) with making a
“determination” as to whether “a State has failed to substantially enforce a provision (or
provisions) in this part with respect to health insurance issuers in the State.” 42 U.S.C. § 300gg22(a)(2). If the Secretary makes such a “determination,” the ACA provides that “the Secretary
shall enforce such provision (or provisions) . . . in such State.” Id. (emphasis added). In other
words, if a State decides not to enforce the market requirements, the ACA authorizes the federal
government to enforce the market requirements within a State’s boundaries.
In 2013, before the ACA’s market requirements went into effect, health insurance
companies began sending insurance cancellation letters to customers whose plans were neither
covered by the grandfathering exception nor compliant with the ACA-mandated market
requirements. Compl. ¶ 35. In response to those cancellations, on November 14, 2013, HHS
instituted a policy change—what West Virginia refers to as “the Administrative Fix”—and
announced that it would not, subject to two conditions, enforce the eight ACA-mandated market
requirements until October 1, 2014. Id. ¶¶ 40, 44-45. Health insurers would be permitted to
continue selling non-compliant insurance coverage as long as (1) the plans had been in effect on
October 1, 2013, and (2) the insurers informed affected customers of their plans’ non-compliance
and the existence of the ACA’s health insurance exchanges. Id. ¶¶ 45-46. HHS “encouraged” the
States to adopt the same transitional policy and thus to refrain from state-level enforcement of the
market reforms. Id. ¶ 49 & Ex. 6 at 3. On March 5, 2014, HHS extended the Administrative Fix
until October 1, 2016. Id. ¶¶ 51-52.
“West Virginia believes that its citizens should be able to keep their individual health
insurance plans if they like them.” E.g., id. ¶ 6. To that end, and in anticipation of the Act going
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into effect, West Virginia had given insurance carriers “the option to permit early renewal for 2013
policyholders,” so that they could extend their current, possibly non-compliant insurance plans
through 2014.
Compl., Ex. 13, at 2.
Due to this prior action, West Virginia Insurance
Commissioner Michael D. Riley initially announced that West Virginia would not “accommodate
the Administrative Fix” because individuals and businesses had “already made extensive changes
to comply with the new law.” Compl. ¶¶ 80-81 (internal citation omitted) (internal quotation marks
omitted). After HHS extended the Administrative Fix until 2016, Commissioner Riley announced
that West Virginia would refrain from enforcement. Id. ¶ 82-83. The State “committed not to
restrict the renewal of certain non-compliant plans for policy years that end by October 2017,” and
left it “up to the [insurance] carriers as to whether they want[ed] to offer non-compliant plans
through that much longer period.” Id. (citation omitted) (internal quotation marks omitted).
B.
Procedural Background
Four months after HHS extended the Administrative Fix, West Virginia filed this lawsuit.
Its Complaint specifies the nature of its alleged injury.
West Virginia alleges that the
Administrative Fix caused it injury “by forc[ing it] to become the sole and exclusive enforcer of
federal law within its borders” and by “reduc[ing] the political accountability of the federal
government at the expense of the States.” Id. ¶¶ 68-69.
Soon after it filed its Complaint, West Virginia filed a Motion for Summary Judgment.
ECF No. 7. HHS then moved to stay proceedings on the Motion for Summary Judgment, so that
the court first could resolve the question of its subject matter jurisdiction over this suit.
ECF No. 10. Judge Walton, who was then presiding over this case, granted HHS’ motion, staying
further briefing on West Virginia’s Summary Judgment Motion. Order, ECF No. 17.
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HHS filed its Motion to Dismiss on October 17, 2014. ECF No. 13. The court heard
argument on the Motion on September 3, 2015. ECF No. 32.
III.
LEGAL STANDARD
On a motion to dismiss brought, as here, under Federal Rule of Civil Procedure 12(b)(1),
a federal court must presume that it “lack[s] jurisdiction unless the contrary appears affirmatively
from the record.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006) (citation omitted)
(internal quotation marks omitted).
The burden of demonstrating the contrary, including
establishing the elements of standing, “rests upon the party asserting jurisdiction.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992). Standing must be demonstrated “for each claim” and “for each form of relief
sought,” DaimlerChrysler, 547 U.S. at 352 (citation omitted) (internal quotation marks omitted),
“with the manner and degree of evidence required at the successive stages of litigation,” Lujan,
504 U.S. at 561.
Further, on a motion to dismiss, the court must accept “well-pleaded factual allegations as
true and draw all reasonable inferences from those allegations in the plaintiff’s favor.” Arpaio v.
Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). The court need not, however, assume the truth of legal
conclusions, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), nor “accept inferences that are
unsupported by the facts set out in the complaint,” Islamic Am. Relief Agency v. Gonzales, 477
F.3d 728, 732 (D.C. Cir. 2007). “Threadbare recitals of the elements of [standing], supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. If a complaint does not
contain sufficient factual matter “to state a claim [of standing] that is plausible on its face,” it must
be dismissed. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see generally
Arpaio, 797 F.3d at 19-20 (setting forth the standard of review for a motion to dismiss that asserts
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a lack of standing under Rule 12(b)(1)). In evaluating a Rule 12(b)(1) motion, a court has broad
discretion to consider relevant and competent evidence—including materials outside the
pleadings. Finca Santa Elena, Inc. v. U.S. Army Corps of Eng’rs, 873 F. Supp. 2d 363, 368
(D.D.C. 2012) (citing 5B Charles Wright & Arthur Miller, Federal Practice & Procedure § 1350
(3d ed. 2004)).
IV.
DISCUSSION
Under Article III of the U.S. Constitution, the jurisdiction of the federal courts is limited
to “Cases” and “Controversies.” Art. III, § 1. The Constitution does not define either of those
terms, and so federal courts have developed the doctrine of standing to identify exactly which cases
and controversies fall within the scope of federal jurisdiction. Lujan, 504 U.S. at 560. At a
minimum, in order to establish that it has standing, a plaintiff must allege: (1) injury-in-fact
suffered by the plaintiff; (2) a causal connection between the injury and the complained-of conduct;
and (3) a likelihood that the injury will be “redressed by a favorable decision” from the court. Id.
at 560-61 (citation omitted) (internal quotation marks omitted). Although HHS contends that West
Virginia cannot meet any of the three elements, Def.’s Mem. at 11-13, the court only focuses on
the first—injury-in-fact.
A.
West Virginia’s Alleged Injuries
Even a cursory reading of West Virginia’s Complaint reveals that the injuries it asserts are
not among the traditional kinds of injuries that the Supreme Court has recognized as sufficient to
confer standing on a State that is challenging federal action. West Virginia does not claim that the
Administrative Fix has caused it to suffer any financial injury. See, e.g., Nat’l Fed’n of Indep.
Small Bus. v. Sebelius, 132 S. Ct. 2566, 2604-05 (2012); Tr. of Oral Arg., ECF No. 32, at 19
[hereinafter Tr.] (conceding that West Virginia has not expended any state funds as a result of the
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Administrative Fix). Nor does it allege that it has been compelled by the federal government to
take a specific action. See, e.g., New York v. United States, 505 U.S. 144, 160 (1992); Pl.’s Opp’n
to Mot. to Dismiss, ECF No. 20, at 30-31 [hereinafter Pl.’s Opp’n] (“The State has not claimed
harm from having to take any particular action.”). Nor does it contend that it brings this action in
its capacity as parens patriae to protect its citizens’ interests. See, e.g., Alfred L. Snapp & Son,
Inc. v. Puerto Rico, 458 U.S. 592, 597-610 (1982); Compl. ¶¶ 67-79 (describing the alleged injury
to West Virginia without any mention of harm to its citizens); Pl.’s Opp’n at 16-30 (same).
Instead, West Virginia alleges that it has suffered two, less traditional types of injury:
(1) harm from “being forced to become the sole and exclusive enforcer of federal law within its
borders,” Compl. ¶ 68, and (2) harm from “the Administrative Fix reduc[ing] the political
accountability of the federal government at the expense of the States,” id. ¶ 69. Though West
Virginia presents these as distinct harms, the court agrees with HHS that, upon closer scrutiny,
they actually collapse into one injury: the enhanced “political accountability” that the State will
suffer at the hands of its citizens who wish to see the ACA’s market reforms enforced.
West Virginia’s own briefing demonstrates the unity of its two alleged injuries. West
Virginia’s second asserted injury—that “the Administrative Fix reduced the political
accountability of the federal government at the expense of the States,” id.—is a straightforward
allegation of injury to the State’s political accountability, as evident from the very text of its
description. West Virginia’s first alleged injury—that it has been “forced to become the sole and
exclusive enforcer of federal law,” id. ¶ 68—is also, at its core, an allegation of harm to political
accountability, although the State does not explicitly frame it as such. The State argues that the
Administrative Fix “forces the State to one of two paths, either of which imposes constitutionally
cognizable harms.” Pl.’s Opp’n at 18. On one hand, West Virginia contends, “[i]f West Virginia
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chooses to enforce federal law, it will be required to expend financial resources and will risk the
displeasure of those individuals who lose their health insurance plans.” Id. at 18-19 (emphasis
added). On the other hand, the State claims, “[i]f West Virginia continues on its present course
and refuses to enforce the ACA’s market requirements, it will suffer blame from those who believe
the ACA forwards important policy ends and who wish to see the law fully enforced.” Id. at 19
(emphasis added). As West Virginia has elected not to enforce the ACA’s market requirements,
Compl. ¶ 83; Tr. 2-4, 18, its claimed injury then is the “blame” that will be cast upon the State by
some of its citizens for declining to enforce the ACA and permitting non-compliant plans to be
sold within the State.
West Virginia’s statements at oral argument, similar to its briefing, make clear that the two
injuries it alleges are really the same. “The injury is that we are the exclusive enforcer of federal
law,” the State argued, “and we are, therefore, held accountable—whatever choice you make—as
a legal matter.” Tr. 20. The State also agreed that its injury was “the political consequences or the
political accountability that flows from having to make” the choice presented by the
Administrative Fix. Id. Additionally, West Virginia admitted that its two allegations of injury
could, in fact, be viewed as the same injury, with the only distinction being that the claimed harm
of increased political accountability was available only to the States. Id. 20-21 (stating that “the
difference between the two theories of standing is that one would only be able to be invoked by
states . . . . [W]hereas, the other theory is a broader theory that would apply to anyone that’s been
made the exclusive enforcer of federal law, whether it would be a private party or the state”).2
2
Similarly, in its Motion for Summary Judgment, West Virginia stated that “concerns about political accountability
are at the core of the anti-commandeering doctrine.” Pl.’s Mem. in Supp. of its Mot. for Summ. J., ECF No. 7-1, at
30 [hereinafter Pl.’s Mem. for Summ. J.].
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1.
West Virginia’s Assertion that Political Accountability Is Relevant Only to
the Merits
Despite having staked out this clear position, West Virginia seemingly attempted to change
course at oral argument. It argued:
[O]ur injury is not political accountability. I want to be absolutely clear about that.
Our injury is that we were commandeered in violation of our Tenth Amendment
rights under the Constitution . . . . Political accountability is how we have made our
arguments on the merits.
Tr. 21 (emphasis added).
West Virginia, however, cannot change horses in the middle of the race. As its Complaint
makes clear, West Virginia defines the alleged harm to its sovereignty in terms of injury to political
accountability, and it does not restrict that argument only to the merits. Under the section heading
“Injury to the State of West Virginia from the Administrative Fix,” West Virginia alleges that,
“[u]nder the Administrative Fix, the lines of political accountability are far less certain. . . . [T]he
Administrative Fix creates—at a minimum—confusion as to which government is actually to
blame for the ACA’s policies.” Compl. ¶ 71. Later, under the same heading, West Virginia asserts
that this “blurred political accountability diminishes the sovereignty of West Virginia . . . by
interfering with the relationship between state officials and their constituents, inhibiting the ability
of elections to properly hold government and public officials accountable, and harming the
reputation and dignity of the States and their officials and agencies.” Id. ¶ 76. West Virginia avers
that it was “precisely the point of the Administrative Fix[ ] to shift political accountability for the
ACA’s eight federally mandated market requirements and their enforcement to the States.” Id.
¶ 125; see also id. ¶¶ 72-73.
West Virginia echoes these allegations in its opposition brief. It argues that “the
Administrative Fix violates the Tenth Amendment because its grant of exclusive enforcement
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responsibility to the States improperly shifted political accountability from the Federal
Government to the States,” Pl.’s Opp’n at 14-15, and that “the State . . . has standing to protect its
sovereign interest against being held politically accountable for federal policy,” id. at 20-21.
West Virginia further contends that its sovereignty is at risk because “the Fix impermissibly shifts
political accountability for the enforcement or non-enforcement of the ACA’s federal market
requirements from the Federal Government to the States, including to West Virginia.” Pl.’s Opp’n
at 23-24; see also, e.g., id. at 15, 17, 20-21, 27, 31.3
As the foregoing passages make clear, West Virginia’s allegations and arguments about
political accountability do not pertain only to the merits of its challenge to the Administrative Fix.
Rather, those allegations and arguments go to the very heart of its asserted basis for standing, to
which the court now turns.
B.
Injury to Political Accountability as Injury-In-Fact
To successfully allege injury-in-fact, a plaintiff must contend that it has suffered “an
invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual
or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (citation omitted) (internal
quotation marks omitted). Although “States are not normal litigants” for purposes of standing,
Massachusetts v. E.P.A., 549 U.S. 497, 518 (2007), “and have interests and capabilities beyond
those of an individual by virtue of their sovereignty,” Oregon v. Legal Servs. Corp., 552 F.3d 965
(9th Cir. 2009) (citing E.P.A., 549 U.S. at 518-20), they too must allege a cognizable injury-infact to establish standing, see E.P.A., 549 U.S. at 516-23. The court concludes that West Virginia
3
West Virginia’s Motion for Summary Judgment advances these same arguments. Its motion asserts that “States
have a protectable sovereign interest in not being held politically accountable by their citizens for the enforcement or
nonenforcement of federal law within their borders . . .” and that “State officials suffer such cognizable sovereign
harm when they are forced to bear the brunt of public disapproval for a federal program . . . or are held politically
accountable for the federal program.” Pl.’s Mem. for Summ. J., ECF No. 7-1, at 39 (citations omitted) (internal
quotation marks omitted); see generally id. at 35-40.
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has failed to do so here. Its claimed injury of “political accountability” is not an “invasion of a
legally protected interest” that is “concrete and particularized” and “not conjectural or
hypothetical.” Lujan, 504 U.S. at 560 (citation omitted) (internal quotation marks omitted).
For starters, the State’s interest in avoiding greater political accountability relative to the
federal government is not the kind of sovereign state interest that the Supreme Court has
recognized as giving rise to standing if allegedly infringed. West Virginia’s claimed injury does
not involve the State’s interest in the enforcement of its own laws. See Snapp, 458 U.S. at 601
(identifying as a sovereign interest “the power to create and enforce a legal code, both civil and
criminal”). It does not involve a demand that West Virginia’s sovereignty be recognized by
another state. See id. (identifying as a sovereign interest “the demand for recognition from other
sovereigns”). It does not involve the State’s real property, see E.P.A., 549 U.S. at 519 (recognizing
“Massachusetts’ well-founded desire to preserve its sovereign territory”); its public fisc, see Nat’l
Fed’n of Indep. Small Bus., 132 S. Ct. at 2604-05 (holding that the “threatened loss of over 10
percent of a State’s overall budget . . . is economic dragooning that leaves the States with no real
option but to acquiesce” in a federal demand); or another form of proprietary interest, see Snapp,
458 U.S. at 601 (observing that “a State is bound to have a variety of proprietary interests . . .
[such as] own[ing] land or participat[ing] in a business venture”). It also does not involve
resolution of public nuisances, id. at 603 (recognizing a state’s interest in “represent[ing] the
interests of their citizens in enjoining public nuisances”); preservation of its citizens’ economic or
physical well-being, id. at 607 (“[A] State has a quasi-sovereign interest in the health and wellbeing—both physical and economic—of its residents in general.”); or protection of its citizens’
interest in participating in the federal system of government, id. at 608 (recognizing as a quasisovereign interest “that the State and its residents are not excluded from the benefits that are to
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flow from participation in the federal system”). And it does not involve state action actually
coerced, or even allegedly coerced, by the federal government. See, e.g., New York, 505 U.S. at
161 (recognizing that the States have a cognizable interest in “whether Congress may direct or
otherwise motivate the States to regulate in a particular field or a particular way”).
Instead, West Virginia’s claimed injury, at bottom, involves a general desire to challenge
the legality of a federal action, relying on the abstract concept of political accountability to define
its alleged harm, which itself is rooted in abstract concepts of federalism and state sovereignty.
The Supreme Court held long ago, however, that a State’s general challenge to the lawfulness of
federal action, predicated on an abstract injury to the State’s sovereignty, is not sufficient to confer
standing. See Massachusetts v. Mellon, 262 U.S. 447, 484-85 (1923).
In Mellon, the Commonwealth of Massachusetts challenged the federal Maternity Act. Id.
at 479. The Maternity Act presented the States with a simple choice: either accept federal funds
and the conditions attached to those funds to implement the Maternity Act or decline to do so. Id.
Massachusetts elected not to opt into the Act, but nevertheless challenged it on the ground that it
“invades the local concerns of the state, and is a usurpation of power, viz., the power of local selfgovernment, reserved to the states.” Id. at 480. The Court began with the observation that Article
III’s “case or controversy” requirement meant that the federal courts are not open to the States
merely “because a state is a party, but only where it is a party to a proceeding of judicial
cognizance.” Id. The Court then asked:
What, then, is the nature of the right of the state here asserted and how is it affected
by this statute? . . . [W]hat burden is imposed upon the states, unequally or
otherwise? Certainly there is none, unless it be the burden of taxation, and that falls
upon their inhabitants, who are within the taxing power of Congress as well as that
of the states where they reside. Nor does the statute require the states to do or to
yield anything. If Congress enacted it with the ulterior purpose of tempting them
to yield, that purpose may be effectively frustrated by the simple expedient of not
yielding.
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Id. at 482 (emphasis added). Determining that Massachusetts had failed to demonstrate that the
Maternity Act had caused it any particularized and concrete burden, the Court held that the
Commonwealth had “present[ed] no justiciable controversy, either in its own behalf or as the
representative of its citizens.” Id. at 480. The Court concluded that Massachusetts’ challenge was
ultimately “political, and not judicial in character, and therefore [was] not a matter which admits
of the exercise of the judicial power.” Id. at 483; see also New Jersey v. Sargent, 269 U.S. 328,
337 (1926) (holding that the State’s allegation that the congressional act at issue that went “beyond
the power of Congress and impinge[d] on that of the state . . . [did] not suffice as a basis for
invoking an exercise of judicial power”).
Nearly one hundred years later, West Virginia finds itself in precisely the same situation.
West Virginia admits that the Administrative Fix does not require it “to do or to yield anything.”
Mellon, 262 U.S. at 482; Pl.’s Opp’n at 30-31 (“The State has not claimed harm[ ] from having to
take any particular action.”). Rather, the Fix only presents the State with a simple choice: either
enforce the ACA’s market requirements or don’t—the very same choice put to the states by the
ACA itself. But merely being put a choice does not give rise to a legally cognizable injury. See
Mellon, 262 U.S. at 480, 482 (finding no “justiciable controversy” where the statute did not
“require the states to do or to yield anything”); cf. FERC v. Mississippi, 456 U.S. 742, 765-66
(1982) (requiring a state merely to “consider” federal proposals does “not threaten the States’
‘separate and independent existence’ and [does] not impair the ability of the States ‘to function
effectively in a federal system’”) (citations omitted). West Virginia wisely does not argue
otherwise. Instead, it argues that the consequences that flow from being put to such a choice give
rise to its injury-in-fact under the Tenth Amendment. See Tr. 20 (“The injury is that we are the
exclusive enforcer of federal law, and we are, therefore, held accountable.”).
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But consequential harm in the form of increased or enhanced “political accountability”
is simply too abstract to support standing. Such asserted injury presents “abstract questions of
political power, of sovereignty, of government” of the kind that federal courts are not permitted to
adjudicate. Mellon, 262 U.S. at 485; see also Valley Forge Christian Coll. v. Ams. United for
Separation of Church & State, Inc., 454 U.S. 464, 475 (1982) (“[E]ven when the plaintiff has
alleged redressable injury sufficient to meet the requirements of Art. III [standing],” [courts]
should “refrain[ ] from adjudicating abstract questions of wide public significance which amount
to generalized grievances.”) (internal citation omitted) (internal quotation marks omitted). For
instance, how would the court evaluate whether, as West Virginia claims, the Administrative Fix
has resulted in “lines of political accountability [that] are far less certain”? Compl. ¶ 71. Or,
determine whether the Administrative Fix has “shift[ed] political accountability away from the
federal government to the States”? Id. ¶ 72. How would the court measure whether, as a
consequence of the Administrative Fix, West Virginia’s citizens, in fact, hold the State, as opposed
to the federal government, responsible for the non-enforcement of the ACA’s market
requirements?
These, and similar questions, would require the court to adjudicate “not rights of person or
property, not rights of dominion over physical domain, not quasi sovereign rights actually invaded
or threatened,” Mellon, 262 U.S. at 484-85, but instead would lead the court “‘into the area of
speculation and conjecture,’ and beyond the bounds of [its] jurisdiction,” Whitmore v. Arkansas,
495 U.S. 149, 158 (1990) (quoting O’Shea v. Littleton, 414 U.S. 488, 497 (1974)); see also, c.f.,
Baker v. Carr, 369 U.S. 186, 217 (1962) (establishing the factors to be considered when
determining justiciability, including “a lack of judicially discoverable and manageable standards
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for resolving [a claim],” and “the impossibility of deciding [a claim] without an initial policy
determination of a kind clearly for nonjudicial discretion”).
The problem of establishing injury-in-fact is further compounded here because the State
can, at best, assert that that the Administrative Fix made it marginally more politically accountable
to its citizens; it cannot claim that the Fix made it newly accountable to them. After all, Congress
gave the States a choice whether to enforce the Act’s market requirements. 42 U.S.C. § 300gg22(a)(1). The Administrative Fix did nothing to alter that enforcement regime or political reality.
Indeed, West Virginia concedes that “each State has the same decision to make about enforcement
that it had before the Administrative Fix.” Compl. ¶ 63(c). What the Administrative Fix changed,
according to West Virginia, is the consequence of a state’s decision not to enforce. Id.; Tr. 19.
West Virginia argues that “[t]his re-writing of the ACA imbues the States’ decisions with
significantly greater practical and legal consequence, and thereby shifts political accountability to
the States in violation of the Tenth Amendment.” Pl.’s Mem. for Summ. J. at 33 (emphasis added).
But alleged injury in the form of newly levied political accountability is itself too abstract to
support standing. And alleged injury of marginally increased political accountability, as claimed
here, is even more attenuated.4
4
Even the limited record here demonstrates the impossibility of determining whether the Administrative Fix made
West Virginia marginally more accountable to its citizens. An article attached to West Virginia’s Complaint cites a
state health-policy expert, Brandon Merritt, as saying that the State’s decision to allow non-compliant plans to be sold,
per the Administrative Fix, “impacts a small segment of the state’s population.” Compl., Ex. 14, at 3. Merritt is
quoted as further opining: “All in all, this makes me feel like this won’t have a huge impact on the way the ACA is
implemented. It shouldn’t impact the implementation in West Virginia much, because we have one of the smallest
individual markets in the country.” Id. (internal quotation marks omitted). The Article estimated that roughly 55
percent of West Virginians receive their insurance from a large employer or through state employment, and more than
30 percent receive public insurance, such as Medicare or Medicare. Id. There is no information about exactly how
many citizens would be affected by the Fix, id. at 2-3 (noting only that the Fix will “likely impact only a small portion
of the population [in West Virginia]” or “a small segment of the [ ] population”), or if those affected citizens hold the
State accountable for the ACA’s non-enforcement.
16
West Virginia argues that this case differs from Mellon and like cases because those cases
did not “involve[ ] the shifting of political accountability for federal policies from the Federal
Government to the States, nor did the States in those cases assert any violation of the anticommandeering doctrine.” Pl.’s Opp’n at 28. But these attempts to distinguish Mellon and related
cases fail for two reasons. First, the fact that Mellon and other cases do not expressly reject the
idea that shifting political accountability can support standing does not mean that such asserted
injury is a legally cognizable injury under Lujan. After all, West Virginia has not cited any case
that recognizes its novel standing theory and distinguishes Mellon from the present factual context.
Second, and more importantly, the crux of Mellon is that abstract injuries, even where advanced
by a State, do not suffice to support Article III standing. See 262 U.S. at 480 (observing that the
effect of Article III’s “case or controversy” requirement “is not to confer jurisdiction upon the
court merely because a state is a party, but only where it is a party to a proceeding of judicial
cognizance”). Thus, the fact that West Virginia here advances an “anti-commandeering” Tenth
Amendment claim, but Mellon involved a Tenth Amendment challenge to the federal
government’s exercise of its spending power, is irrelevant. Concrete injury is an indispensable
requirement of a valid action regardless of the nature of the challenge.
C.
Political Accountability as Injury-in-Fact Under New York and Printz
To support its argument that enhanced political accountability constitutes an injury-in-fact,
West Virginia relies primarily on two Tenth Amendment “anti-commandeering” cases—New York
v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997). At issue
in New York was the federal Low-Level Radioactive Waste Policy Amendments Act of 1985. New
York, 505 U.S. at 149-51. That Act provided States monetary and access incentives to follow its
terms, but if a State decided not to do so, the Act compelled the State to take title to all internally
17
generated radioactive waste and made it liable for all damages arising from the failure of the State
to take possession of such waste. Id. at 152-54. The Supreme Court held that, although the
monetary and access provisions in question were constitutional, the “take title” provision was not,
because it put the States to an unconstitutionally coercive choice: either regulate as Congress
directed or take title to the waste. Id. at 171-77 (“A choice between two unconstitutionally coercive
regulatory techniques is no choice at all.”). West Virginia argues that the Court recognized in New
York that placing heightened political accountability on the States, without more, could constitute
a cognizable “anti-commandeering” injury, Pl.’s Opp’n at 21-22, citing the following passage:
[W]here the Federal Government directs the States to regulate, it may be state
officials who will bear the brunt of public disapproval, while the federal officials
who devised the regulatory program may remain insulated from the electoral
ramifications of their decision.
New York, 505 U.S. at 169.
Printz, the other case on which West Virginia relies, involved a federal law requiring state
and local law enforcement officers to conduct background checks and perform other tasks related
to gun sales. The Supreme Court held that under the Tenth Amendment the federal government
could neither compel a State, nor conscript State officers, to administer or enforce a federal
regulatory program. Printz, 521 U.S. at 933-35. It noted that “[i]t is an essential attribute of the
States’ retained sovereignty that they remain independent and autonomous within their proper
sphere of authority. It is no more compatible with this independence and autonomy that their
officers be ‘dragooned’ . . . into administering federal law.” Id. at 928 (citation omitted). The
Court answered the government’s contention that requiring the States to perform discrete,
ministerial acts did not violate the Tenth Amendment by explaining—in a passage cited by West
Virginia to support its standing theory, Pl.’s Opp’n at 22—that, “even when the States are not
18
forced to absorb the costs of implementing a federal program, they are still put in the position of
taking the blame for its burdensomeness and for its defects,” Printz, 521 U.S. at 930.
West Virginia is correct that both New York and Printz recognize that the States may incur
unfair and disproportionate political consequences when the federal government unlawfully
“commandeers” the States’ regulatory structures and personnel to enforce federal standards.
See New York, 505 U.S. at 168; Printz, 521 U.S. at 921. But neither case holds that the States
suffer a legally cognizable injury-in-fact whenever the federal government, without more, presents
them with a simple choice about whether to enforce federal standards, and the only discernable
consequence of electing not to enforce is that the State becomes politically accountable (or
marginally more accountable) to its citizens. Neither New York nor Printz is a case about standing,
and the Court’s observations about political accountability came strictly within its discussions of
the merits. The court agrees with HHS that West Virginia cannot “take an abstract concept,
elucidated as part of the Supreme Court’s merits reasoning, and bootstrap that abstraction into a
cognizable Article III injury.” Def.’s Reply to Pl.’s Opp’n to Mot. to Dismiss, ECF No. 23, at 6
[hereinafter Def.’s Reply].
But, more importantly, the passages in New York and Printz on which West Virginia relies
were written in the context of analyzing federal statutes that coerced or compelled the States to
enforce federal standards—a circumstance that West Virginia concedes does not exist here.5
See New York, 505 U.S. at 161-62, 175-77; Printz, 521 U.S. at 933-35; Tr. 10-15; Pl.’s Mem. for
Summ J. at 34; see Pl.’s Opp’n at 7-8 (stating that the ACA gave the States a voluntary choice to
5
The court uses the phrase words “compel” and “coerce” here as the Court used them in New York. There, the Court
distinguished statutes that unlawfully “compel” and “coerce” from those that permissibly “encourage” a State to
regulate in a particular way. New York, 505 U.S. at 166 (“Our cases have identified a variety of methods, short of
outright coercion, by which Congress may urge a State to adopt a legislative program consistent with federal
interests.”).
19
enforce the market requirements and describing the Fix only as changing the consequence of that
choice, rather than the voluntary nature of the choice). In New York, the Court explained that
“where the Federal Government compels States to regulate, the accountability of both state and
federal officials is diminished.” 505 U.S. at 168 (emphasis added). Later in the same paragraph,
the Court again observed, “where the Federal Government directs the States to regulate, it may be
state officials who will bear the brunt of public disapproval.” Id. at 169 (emphasis added). The
Court noted that the statute in question “offers state governments a ‘choice’ of either accepting
ownership of waste or regulating according to the instructions of Congress.” Id. at 175. In other
words, the statute offered States no real choice at all: “No matter which path the State chooses, it
must follow the direction of Congress.” Id. at 177.
Similarly, the key passage in Printz cited by West Virginia—“[E]ven when the States are
not forced to absorb the costs of implementing a federal program, they are still put in the position
of taking the blame,” 521 U.S. at 930; see also Pl.’s Opp’n at 22—came in reference to a federal
statute that, even by the federal government’s admission, “require[ed] state officers to perform
discrete, ministerial tasks specified by Congress,” Printz, 521 U.S. at 929 (emphasis added).
Indeed, the court observed that “the whole object of the law [was] to direct the functioning of the
state executive, and hence to compromise the structural framework of dual sovereignty.” Id. at
932. In such a scheme, the Court commented, “it will be the [state official] and not some federal
official who stands between the gun purchaser and immediate possession of his gun.” Id. at 930.
Fairly read, New York and Printz recognize that, when a State suffers actual concrete injury
from a federal government action—such as through the coerced expenditure of state revenues, the
compelled enforcement of federal standards, or the forced acceptance of title to property—
increased political accountability for the State is a natural, albeit derivative, outgrowth of such
20
concrete injury. But neither New York nor Printz can be reasonably read, as West Virginia asserts,
to mean that increased political accountability is a stand-alone, cognizable legal injury for purposes
of Article III standing.
Other Supreme Court anti-commandeering cases, although they do not speak of political
accountability, also implicitly recognize that no true “commandeering” injury-in-fact exists absent
compulsion or coercion by the federal government. See, e.g., FERC, 456 U.S. at 765 (finding no
Tenth Amendment violation where there was nothing in the federal statute “directly compelling”
the States to enact a legislative program); Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc.,
452 U.S. 264, 288 (1981) (finding no Tenth Amendment violation where “the States are not
compelled to enforce the [federal] standards, to expend any state funds, or to participate in the
federal regulatory program in any manner whatsoever”); Charles C. Steward Mach. Co. v. Davis,
301 U.S. 548, 589-90 (1937) (requiring “coercion” to establish an anti-commandeering injury, i.e.,
“the exertion of a power akin to undue influence”). Indeed, West Virginia has cited no case, and
the court has found none, in which alleged injury to political accountability, unmoored from
allegations of federal compulsion or coercion, was sufficient to confer standing upon a state. See
Pl.’s Mem. for Summ. J. at 34 (arguing that “HHS did not require the States to enforce federal
law—as the Federal Government had done in New York and Printz—[but that] its novel effort to
grant the States unconditional and unguided discretion over federal law is no less
unconstitutional”) (emphasis added); see id. (admitting that the “courts have not previously
encountered” the type of situation at issue here).
As for the present Complaint, it nowhere alleges that the Administrative Fix compelled or
coerced West Virginia to enforce the ACA’s eight market requirements.
Admittedly, the
Complaint does use the word “conscripted” to describe the impact of HHS’ actions on the State.
21
See, e.g., Compl. ¶ 10(d) (“By making States solely responsible for determining under federal law
whether plans made illegal by the ACA must be cancelled, the President has unlawfully
conscripted States into federal service[.]”); see also id. ¶ 119 (citing Printz’s use of the word
“conscript”). But at oral argument, West Virginia conceded that by “conscripted” it meant little
more than that the Administrative Fix put the State to a choice: either enforce the ACA’s market
requirements or elect not to do so, knowing that without federal enforcement, non-compliant plans
could be sold legally within the State’s borders. Tr. 10-11. As discussed, however, simply offering
the State a choice about regulation, without any use of coercion, does not give rise to a cognizable
injury-in-fact for purposes of standing.
Elsewhere, West Virginia uses the word “force” in its Complaint, alleging that “the
Administrative Fix forces States to become federal policymakers.” Compl. ¶ 64. But, when read
in the context of the Complaint as a whole, West Virginia uses the word “force” no differently
than it does the word “conscript”—that is, to mean that the State is asked to make a voluntary
choice whether or not to enforce the ACA’s market requirements, with the certain consequence
that the decision not to enforce will enable non-compliant plans to be sold within the State’s
borders.
D.
Per Se Injury-in-Fact Under Lomont
Unable to root its asserted injury-in-fact in New York and Printz, West Virginia tries a
different tack. It argues “that a State always has standing to challenge a federal statute or
regulation that the State can colorably claim violates its Tenth Amendment rights.” Pl.’s Opp’n at
22 (emphasis added). Stated differently, West Virginia argues that inherent in any colorable anticommandeering claim brought by a State is a legally cognizable injury resulting from federal
action. And, because a court must assume success on the merits of such a claim at the motion to
22
dismiss stage, see LaRoque v. Holder, 650 F.3d 777, 785 (D.C. Cir. 2011) (“[I]n assessing
plaintiffs’ standing, we must assume they will prevail on the merits of their constitutional
claims.”), a State that asserts a colorable anti-commandeering claim “always” has plead a sufficient
injury-in-fact.
To support its argument, West Virginia relies on the Court of Appeals’ decision in Lomont
v. O’Neill, 285 F.3d 9 (D.C. Cir. 2002) [hereinafter Lomont II]. In Lomont II, the plaintiffs were
private individuals and local law enforcement officials who challenged federal regulations
implementing the National Firearms Act of 1934. 285 F.3d at 11-13. Under those regulations,
anyone who wished to transfer a firearm had to obtain a certification from a local chief of police
or county sheriff or an appropriate federal official. Id. at 12. The plaintiffs argued that the
certification requirement violated the Tenth Amendment under Printz because it “compelled”
States to administer the federal regulatory regime. Lomont v. Summers, 135 F. Supp. 2d 23, 24
(D.D.C. 2001) [hereinafter Lomont I]. The Court of Appeals ultimately rejected the plaintiffs’
claim on the merits, concluding that, unlike the regulations in Printz, the challenged regulations
did not command local and state officials to do anything; their participation was entirely voluntary.
Lomont II, 285 F.3d at 14.
But before reaching the merits, the Court of Appeals ruled that the plaintiffs who were
local sheriffs had standing to raise their claims. Id. at 13. The Court of Appeals rejected the
government’s argument, raised in a footnote in its brief, that the sheriffs had standing only if
authorized by state law to act on behalf of the State. Id. at 14-15. According to West Virginia,
because the Court of Appeals expressly and “easily” found standing in Lomont II, yet ruled against
the plaintiffs on the merits, Lomont II requires courts to afford special “solicitude toward standing
[that is] based on harm to a State’s rights under the Tenth Amendment.” Pl.’s Opp’n. at 23. In
23
other words, West Virginia argues that Lomont II creates automatic standing for States that assert
colorable Tenth Amendment claims.
West Virginia accords Lomont II far more weight than it can bear. Nowhere does Lomont II
say that a State “always” has standing to challenge a federal statute or regulation whenever it
asserts a colorable anti-commandeering claim. Pl.’s Opp’n at 22. Had the Court of Appeals
intended to announce such a categorical rule, it presumably would have done so explicitly. The
better reading of Lomont II is a narrower one—namely, that state law enforcement officials have
standing to challenge a federal law or regulation whenever they assert that the law or regulation at
issue conscripts or impairs the state officers’ official functions. See Arpaio v. Obama, 27 F. Supp.
3d 185, 201-02 (D.D.C. 2014) (interpreting Lomont II as a case conferring standing to challenge
“direct regulation” of a state officer’s official duties), aff’d, Arpaio, 797 F.3d at 14-15. Such a
reading is consistent with the Court of Appeals’ citation to both Printz and an earlier circuit
decision, Fraternal Order of Police v. United States, 173 F.3d 898, 904-05 (D.C. Cir. 1999), each
of which involved challenges by local sheriffs to federal gun laws that allegedly directly regulated
their duties. This narrower reading of Lomont II is also consistent with the cursory treatment of
standing in the government’s appellate brief, which is addressed only in a footnote.
The
government did not seek to affirm the district court’s dismissal of the complaint on the alternative
ground that the law enforcement plaintiffs lacked standing.6 Thus, the Court of Appeals had no
occasion to consider the categorical standing rule that West Virginia advocates.
6
This court has reviewed the appellate briefs in Lomont and confirmed that the government there did not argue that
the district court’s dismissal of the complaint could be affirmed on the alternative ground that the plaintiffs lacked
standing. All the government did was assert its view, in a footnote, that the law enforcement plaintiffs had “standing
only if they are authorized by state law to act on behalf of the State,” but acknowledged that in Fraternal Order of
Police, the Court of Appeals had held that a law enforcement organization had standing to represent the interests of
its chief law enforcement members. See Br. for Appellees at 34-35 n.9, Lomont v. O'Neill, 285 F.3d 9 (D.C. Cir.
2002) (Civ. No. 01-05104).
24
Furthermore, Lomont II does not help West Virginia because the law enforcement plaintiffs
there asserted that they were “compel[led]” “to enact or administer a federal regulatory program.”
Lomont I, 135 F. Supp. 2d at 24. The complaint in Lomont, which this court has obtained and
reviewed, alleged that the challenged federal regulations “require[d]” local law enforcement
officials to complete transfer certificates, which necessitated that local officials undertake a variety
of inquiries about the applicant, and thus “commandeer[ed] the resources of [the law enforcement
plaintiffs] and all other State and local law enforcement officers so situated throughout the United
States.” Lomont I, Civ. No. 00-01935 (JR), Compl. ¶¶ 38-39, 42 (filed Aug. 10, 2000). West
Virginia, of course, makes no similar allegation of compulsion here. It does not allege that the
Administrative Fix required it to expend any state resources or its officials to take any particular
action. Thus, West Virginia has not alleged the kind of concrete anti-commandeering injury that
the Court of Appeals in Lomont II found to confer standing.
Finally, West Virginia’s proposed categorical rule that a State “always has standing to
challenge a federal statute or regulation that the State can colorably claim violates its Tenth
Amendment rights” cannot be squared with Supreme Court precedent. Pl.’s Opp’n at 22 (emphasis
added). The Supreme Court has explained that “[n]o principle is more fundamental to the
judiciary’s proper role in our system of government than the constitutional limitation of federalcourt jurisdiction to actual cases or controversies.” DaimlerChrysler Corp., 547 U.S. at 341
(citations omitted) (internal quotation marks omitted). “If a dispute is not a proper case or
controversy, the courts have no business deciding it, or expounding the law in the course of doing
so.” Id. The law of standing sits at the center of the case-or-controversy requirement of Article
III, see Lujan, 504 U.S. at 341, and “serves to prevent the judicial process from being used to usurp
the powers of the political branches,” Clapper v. Amnesty Int’l. USA, 133 S. Ct. 1138, 1146 (2013).
25
By definition, Tenth Amendment challenges, such as the one at issue here, seek to test the
constitutionality of an action taken by a coordinate branch of the federal government, whether it
be legislation enacted by Congress or a regulation promulgated by the Executive Branch. These
claims often involve controversial policy questions that courts are ill-equipped to handle and that
put the courts at particular risk of encroaching on the proper domain of the political branches;
accordingly, such claims are better left to the political branches to resolve.
It is therefore
incumbent upon a federal court to ensure that, before proceeding to the merits of a Tenth
Amendment challenge, a State asserting such a claim has alleged a “particularized, concrete, and
otherwise judicially cognizable” injury. As the Court wrote in Raines v. Byrd: “[W]e must put
aside the natural urge to proceed directly to the merits . . . [and] [i]nstead, we must carefully
inquire as to whether appellees have met their burden of establishing that their claimed injury is
personal, particularized, concrete, and otherwise judicially cognizable.” 521 U.S. 811, 820 (1997).
In view of the foregoing principles, the court cannot conclude, as West Virginia has argued,
that the mere assertion of a colorable Tenth Amendment anti-commandeering claim by a State is
enough to establish its Article III standing. Merely determining whether an anti-commandeering
claim is “colorable” falls well short of the “rigorous” standing inquiry required by the Supreme
Court. Id. at 819. It is simply not enough for a State to advance an anti-commandeering claim
and assert that injury is inherent within the claim. The State’s burden is to establish a “legally
protected interest” under the Tenth Amendment that is “concrete and particularized” and is “not
conjectural or hypothetical.” Lujan, 504 U.S. at 560 (citation omitted) (internal quotation marks
omitted). West Virginia has failed to carry its burden in this case.
26
E.
The State as “Object” of the Administrative Fix
Finally, West Virginia asserts that it has standing because it is “one of only 51 ‘objects’ of
the Administrative Fix,” Pl.’s Opp’n at 16 (citation omitted), and that “[w]hen a plaintiff is the
object of the [government] action (or forgone action) at issue, there is generally little question that
the action or inaction has caused him injury, and that a judgment preventing or requiring the action
will redress it,” id. (citing Lujan, 504 U.S. at 561-62) (internal quotation marks omitted). To
demonstrate that the States were the “objects” of the Administrative Fix, West Virginia cites only
the letter that HHS sent “specifically and only” to state insurance commissioners, id., in which it
“encouraged” the States “to adopt the same transitional policy” as HHS, Compl. ¶ 49 & Ex. 6 at
3.
In Lujan, the Court distinguished “objects” of a government action or inaction, from those
entities whose claimed injury “arises from the government’s allegedly unlawful regulation (or lack
of regulation) of someone else.” Lujan, 504 U.S. at 562. As to the former—the “objects”—the
Court observed, “there is ordinarily little question that the action or inaction has caused him injury,
and that a judgment preventing or requiring the action will redress it.” Id. at 561-62. By contrast,
for a party that is not the object of the challenged conduct, “much more is needed . . . . [and]
causation and redressability ordinarily hinge on the response of the regulated (or regulable) third
party to the government action or inaction.” Id. at 562. Thus, as HHS correctly observes, Lujan’s
discussion about a party as the “object” of a government action related to the causation and
redressability elements of standing, and not injury-in-fact. See Def.’s Reply at 17.
In any event, just because HHS notified the States about the Administrative Fix and
“encouraged” the States to adopt it, it does not follow that the States were the “objects” of the
policy decision. The Administrative Fix “neither require[d] nor [forbade] any action” on the part
27
of the States. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (concluding that the
plaintiffs were not the “objects” of Forest Service regulations that “govern only the conduct of
Forest Service officials”). Rather, the Administrative Fix proscribed only HHS personnel from
enforcing the ACA’s market requirements. See id. These officials arguably are the “objects” of
the Fix. And, if not them, then the citizens whose non-compliant health insurance policies were
cancelled are the “objects” of the Fix. The States, however, remain free to regulate if they wish.
See Compl. ¶ 63(c) (“[E]ach State has the same decision to make about enforcement that it had
before the Administrative Fix”). The States simply were not the “objects” of the Administrative
Fix as the Court used that term in Lujan.
V.
CONCLUSION
For the reasons stated above, the court grants Defendant’s Motion to Dismiss. A separate
order accompanies this Memorandum Opinion.
Dated: October 30, 2015
Amit P. Mehta
United States District Judge
28
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